Hits and Misses during the past week in the Lame Duck 111th Congress

The Senate had an idea, proposed by Delaware's Democratic Senator Tom Carper and Oklahoma's Republican Senator Tom Coburn, that the person running the Census Bureau should be qualified in running a large organization. They introduced S. 3167, the Census Oversight Efficiency and Management Reform Act of 2010.

Senator Lieberman, Chairman of the Committee on Homeland Security and Governmental Affairs reported the bill favorably with written report Number 111-351. S. 3167 passed the Senate by Unanimous Consent.

S. 3167 did not pass in the House despite receiving a majority of votes from the Members of the House. The bill was brought up on a Suspension of the Rules basis which means it needed a ⅔ majority to pass. The vote was on Roll Call 629 where 201 Members voted for S. 3167 and 167 Members voted against the measure. A ⅔ majority required 245 votes of those Members present and voting. If the Rules Committee submits a Rule for S. 3167 then it can be submitted for passage needing only a simple majority to pass.

H.R. 2965, the repeal of Don't Ask Don't Tell passed the House on Roll Call Vote 368 by a margin of 250 Members in favor to 175 opposed. The bill has been sent to the Senate where on a motion by Nevada's Democratic Senator, Harry Reid it was referred to the Senate Committee on Armed Services with the House message accompanying HR 2965, "with instructions to report back forthwith with amendment SA 4829 made in Senate".

Senate Amendment 4829 directs that at the end of the text the following is inserted: The Senate Armed Services Committee is requested to conduct a study on the impact of implementing these provisions on the family of military members. Senator Reid then proposed Senate Amendment 4830, an Amendment to Senate Amendment 4829 proposing that at the end of the text the following should be added: ” and that the study should focus attention on the dependent children''.

Meanwhile, Senator Liebermann [I-CT] introduced, together with 49 cosponsors, S. 4023, which is an exact duplicate of H.R. 2965. The Senate need not act directly on H.R. 2965 if it passes S. 4023 as drafted. Since the two are identical the legislation is considered to be enrolled and may be sent to the President.

Apparently a major disadvantage to hybrid and all electric motor vehicles is something Detroit has been selling as an advantage for years: a quiet ride. The new vehicles are so quiet that persons with disabilities of sight and hearing are put at risk. Normal cars and trucks, as quiet as automobile manufacturers have tried to make them, make enough noise so that a person with these disabilities is not likely to step out in front of them and be struck. Not so with these new ultra quiet vehicles.

That's why Massachusetts' Democratic Senator, John Kerry, introduced S. 841, the Pedestrian Safety Enhancement Act of 2010. This bill directs the Secretary of Transportation to study and report to Congress on the minimum level of sound that is necessary to be emitted from a motor vehicle, or some other method, to alert blind and other pedestrians of the presence of operating motor vehicles while traveling. It is expected the new standards will apply to vehicles operating at slow speeds and not be required at highway speeds.

S. 841 passed the Senate by Unanimous Consent. It sailed through the House, where it was brought up on a Suspension of the Rules motion requiring a ⅔ majority. S. 841 passed the House on Roll Call 640 with 379 Members voting in favor and 30 voting against the bill. The measure required 273 votes to pass.

S. 841 has been cleared to be sent to the White House for the President's signature.

S. 3447, the Post-9/11 Veterans Educational Assistance Improvements Act of 2010 has also been cleared to be sent to the White House for the President's signature. This bill is the first major overhaul of G.I. benefits since 9/11. S. 3447 was introduced by Hawaii's Democratic Senator Daniel Akaka, with 35 cosponsors. The bill passed the Senate by Unanimous Consent. Having been brought up in the House on a motion to Suspend the Rules, the bill needed a ⅔ majority for passage. There were 402 Members in favor and 3 opposed on Roll Call 642.

At the end of May the House passed H. R. 5136, the National Defense Authorization Act for Fiscal Year 2011 by a margin of 229 to 186 on Roll Call 336. That bill went to the Senate, where it was buried. H.R. 6523 is the new incarnation of the National Defense Authorization Act for Fiscal Year 2011. This version passed the House by a much wider margin with 341 Members in favor and 48 opposed to the measure. A ⅔ majority of 260 votes was needed since the bill came up on a motion to Suspend the Rules.

H.R. 5136 , the CBO estimated ,would authorize appropriations totaling $726 billion for fiscal year 2011 for the military functions of the Department of Defense (DoD), for certain activities of the Department of Energy (DOE), and for other purposes. That total includes $159 billion for the cost of overseas contingency operations, primarily in Iraq and Afghanistan. The bill also would authorize an additional $34 billion for fiscal year 2010 for costs associated with those operations and for DoD relief efforts associated with the recent earthquake in Haiti. In addition, H.R. 5136 would prescribe personnel strengths for each active-duty and selected reserve component of the U.S. armed forces. CBO estimates that appropriation of the authorized amounts would result in outlays of $749 billion over the 2010-2015 period..

H.R. 6523, the CBO estimates, will have the same net increase in the budget as H.R. 5136 for fiscal year 2011. That is $3,973,000,000. For fiscal year 2012 H.R. 2136 had a larger deficit reduction impact than does H.R. 6523 by $40 million. Over the next decade H.R. 5136 would have reduced the deficit by $15 million compared to H.R. 6523, which the CBO projects will reduce the deficit by only $2 million.

H.R. 6523 moves on to the Senate in the waning days of the lame duck session.

H.R. 2142, the Government Efficiency, Effectiveness, and Performance Improvement Act of 2010 failed to get a ⅔ majority vote after being brought up on a Suspension of the Rules motion. H.R. 2142 originally passed the House on a voice vote, June 16, 2010. The Senate passed the bill with an Amendment by Unanimous Consent. The bill failed to get the requisite 229 votes of those Members present and voting.

The CBO report says that H.R. 2142 would amend the Government Performance and Results Act of 1993 (GPRA), requiring federal agencies to define their missions and evaluate their performance. Specifically, the legislation would require federal agencies to expand their efforts to track and improve performance by: providing the Congress and the public with additional information on their current plans; incorporating their management goals and improvement plans into the GPRA performance evaluation process; and providing information on their performance via the Internet. In addition, the legislation would require training for employees who analyze and evaluate government programs, a report by the Government Accountability Office (GAO), and a study by the Office of Personnel Management regarding the evaluation of government programs.

H.R. 5510, the Aiding Those Facing Foreclosure Act of 2010 failed to garner a ⅔ majority required because it was brought up on a motion to Suspend the Rules.

This bill Amends the Emergency Economic Stabilization Act of 2008 (EESA) to authorize the Secretary of the Treasury to use otherwise unobligated amounts under the Troubled Asset Relief Program (TARP) to enable nonprofit counseling intermediaries and nonprofit legal organizations to provide legal assistance to homeowners of owner-occupied homes consisting of from one to four dwelling units whose mortgages are in default or delinquency, in danger of default or delinquency, or subject to or at risk of foreclosure (including any deed in lieu of foreclosure or short sale).

Although the bill got a majority vote on Roll Call 655, 210 Members in favor and 145 Members opposed, it failed to get to the votes needed, in this case 237. Note: 78 Members did not vote!

Senator Barbara Boxer, [D-CA], introduced S. 3874, the Reduction of Lead in Drinking Water Act. This bill passed the Senate by Unanimous Consent and managed to get the required ⅔ vote needed in the House when a bill is brought up on a motion to Suspend the Rules. On Roll Call 656 there were 226 Members in favor and 109 opposed. The magic number this time was 224.

This bill Amends the Safe Drinking Water Act to exempt from prohibitions on the use or sale of lead pipes, solder, and flux: (1) pipes or pipe or plumbing fittings or fixtures, including backflow preventers, that are used exclusively for nonpotable services such as manufacturing, industrial processing, irrigation, outdoor watering or any other uses where the water is not anticipated to be used for human consumption; or (2) toilets, bidets, urinals, fill valves, flushometer valves, tub fillers, shower valves, service saddles, or water distribution main gate valves that are two inches in diameter or larger.

Redefines "lead free" under such Act to mean: (1) not containing more than 0.2% lead when used with respect to solder and flux (current law); and (2) not more than a weighted average of 0.25% lead when used with respect to the wetted surfaces of pipes and pipe and plumbing fittings and fixtures. Establishes a formula to calculate the weighted average lead content of a pipe or pipe or plumbing fitting or fixture.

Now if Senator Boxer could only manage to get the lead out of the Senate!

The Joint Strike Fighter Alternative Engine Program is Running In the Red - The GE/ROLLS ROYCE Ad Campaign Implicates Incoming Armed Services Committee Chairman Buck McKeon - Are Republicans Restoring Bad Ethics to the House?

In the National Defense Authorization Act of 2010, Public Law 111-84, provision is made for the Joint Strike Fighter Alternative Engine Program. Specifically Title II § 217 authorizes [s]eparate procurement and research, development, test, and evaluation line items and program elements for the F-35B and F-35C joint strike fighter aircraft.

The Note to 10 U.S.C. 221 speaks to the Joint Strike Fighter Alternative Engine Program. It says; "In the budget materials submitted to the President by the Secretary of Defense in connection with the submission to Congress, pursuant to section 1105 of title 31, United States Code, of the budget for fiscal year 2011, and each subsequent fiscal year, the Secretary shall ensure that within the Navy research, development, test, and evaluation account and the Navy aircraft procurement account, a separate, dedicated line item and program element is assigned to each of the F-35B aircraft and the F-35C aircraft, to the extent that such accounts include funding for each such aircraft.

That takes us to the line item in the budget for the Joint Fighter Alternative Engine Program. Lines 006 and 007 for the program show that, in thousands of dollars, the FY 2010 Request for line 006, the Joint Strike Fighter Program was $3,997,048 times $1000 for a final figure of $3,997,048,000. That's just a shade under $4 billion. The next figure is the same, it is the amount agreed upon in the Conference Agreement, nearly $4 Billion.

006 Joint Strike Fighter ...........................................$3,997,048.... $3,997,048

007 Advance Procurement .........................................$481,000.......$481,000

Line 007 shows the Advance Procurement in thousands of dollars for the 2010 Calendar Year (CY). So what looks, at first glance, to be a half a million dollars is actually $4.8 million for 2010.

Skip to line item 127 and try and follow the government's accounting. The FY2010 request on line 127, in thousands of dollars, is $1,741,296 or after the multiplier $1,741,296,000. That's $1.7 billion. What the Conference Agreed on was $1,956,296 times $1,000 or $1,956,296,000 or nearly $2 billion. In the line item below the number 0604800N refers to the program element within the budget. Bracketed numbers such as the [$215,000] usually indicate negative numbers. In this case the $215,000 times $1,000 equals $215,000,000 or $215 million by which Congress exceeded the President's request.

127 0604200N Joint Strike Fighter (JSF)....................$1,741,296...$1,956,296
       F136 Development .............................................$[215,000]...$[215,000]

Go back to line 84 and you'll see how this escalates.

084 0604800F Joint Strike Fighter (JSF).....................$1,858,055...$2,073,055

       F136 Development .............................................$[215,000]...$[215,000]

The FY 2010 request for program element 0604800F was $1,858,055 timed $1,000 or $1,858,055,000 that's $1.8 billion. What the Conference Agreed to was $2,073,055 times $1,000 or $2,073,055,000 which is more than $2 billion. The bracketed amount represents the $215,000,000 more than the President requested.

But do these figures add up? The overall authorization was for $3,997,048,000. $3,997,048,000 minus the funds for Program Element 0604800N or $1,956,296,000 equals $2,040,752,000. There's $2,040,752,000 left in the budget for the Joint Strike Fighter Program. Yet the amount budgeted on line 084 is $2,073,055,000. $2,040,752,000 minus $2,073,055,000 equals -$32,303,000.

This program is starting off $32 million dollars in the hole! If Congress had kept with the President's request then $430 million would not have been available. The question is whether Congress would have overrun the budget by the additional $400 million, as they have, or would they have pared spending to conform to the budget?

It is not an idle question. Before the National Defense Authorization Act of 2010 became Public Law 111-84 it was first introduced into the House as H.R. 5136. Maine's Democratic Representative Chellie Pingree introduced House Amendment 661 to H.R. 5136. That Amendment sought to eliminate funding for the Joint Strike Fighter's Alternative Engine Program. This is what she had to say about her Amendment on the floor of the House:

"Ms. PINGREE of Maine. Mr. Chairman, this amendment prohibits any further funding for the alternate F-35 engine.

In 2001, Pratt & Whitney won the award for the primary engine for the Joint Strike Fighter through a competitive bidding process. This process was set up to save millions in taxpayer dollars. Since then, Congress has authorized an astonishing $1.3 billion of unrequested funds for the development of this extra unnecessary engine. The Bush administration opposed this program. The Obama administration opposes this program. And yet if this amendment fails today, we will continue to fund a defense program that is a complete waste of money.

I could not put it any better than the Secretary of Defense put it himself: Given the many pressing needs facing our military and the fiscal challenges facing our country, we cannot afford a ``business as usual'' approach to the defense budget. Tough choices must be made by both the Department and Congress to ensure that current and future military capabilities can be sustained over time. This means programs and initiatives of marginal or no benefit, like the F136 engine, are unaffordable luxuries."

House Amendment 661 to H.R. 5136 failed by a vote of 193 in favor of the Amendment to 231 opposed, with 3 Members not voting. That was Roll Call 316 on May 27, 2010. There were no party line divisions on this vote. The inertial weight of the lobbying power of the Military Industrial Complex held the majority of Members and prevailed. The next Chairman of the House Committee on Armed Services voted against the Pingree Amendment.

This debate is not over. The partnership between General Electric and Rolls Royce is advertising their product for the Joint Strike Fighter Alternative Engine Program. They claim they can save the American Taxpayers $20 billion and reduce the national deficit. We are already over budget and going backwards on a program once decided and awarded. If you're going to save the taxpayers $20 billion don't you have to get back to zero first?

You can read the GE/Rolls Royce AD-STRAVAGANZA at http://www.f136.com/. You will want to pay attention to the Tweets directed to incoming Armed Services Committee Chairman Buck McKeon, [R - CA] in the advertising. McKeon is firmly planted in the camp advocating the Joint Strike Fighter Alternative Engine Program.  He's also known for speaking out of the other side of his mouth pandering to the notion of limited government with less spending.  Let's see if we give billionaires a FAT CAT TAX BOONDOGGLE and waste money on the Joint Strike Fighter Alternative Engine Program, which the Pentagon didn't want, then from where will the less spending of the limited government come?  Watch out Social Security!

That seems at least to reflect an appearance of impropriety if not a downright disqualifier. Nancy Pelosi worked to drain the swamp, with costly results to Democrats with Seniority. John Boehner and his team look like they are about to fill the swamp again. It seems as though the Republicans don't realize that their former Majority Leader, Tom DeLay, is facing what amounts to a life sentence for his shenanigans.

DeLay faces a sentence of five years to 99 years in prison for a Texas money- laundering conviction and a two year to 20 years sentence for a conspiracy count as well, plus fines. He is free on bond until his sentencing in a Texas state court on Dec 20. DeLay plans an appeal. DeLay turns 64 next April. 

H.R. 4853 AS AMENDED BY THE SENATE FACES AMENDMENT IN THE HOUSE ON THE ISSUE OF THE FAT CAT ESTATE TAX BOONDOGGLE

H.R. 4853, the Middle Class Tax Relief Act, sailed through the Senate after Congressional Republicans struck a deal with the President assuring the FAT CAT TAX BOONDOGGLE would not go quietly into that night of nights. Yesterday the Rules Committee issued H. Res. 1766, accompanied by Report Number 111-682, which, inter alia, summarizes H. Res. 1766.

The Resolution provides for consideration of the Senate Amendment to the House Amendment to the Senate Amendment to the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, as H.R. 4853 is now being called.

The Chairman and Ranking Member of the House Ways and Means Committee will control the equally divided three hours of debate of the bill on the House floor.

The Resolution makes in order a motion to be offered by the Chairman of the House Ways and Means Committee that the House concur in the Senate Amendment to H.R. 4853, as passed by the House on December 2nd. That was Roll Call Number 604 when the House agreed with an amendment to the Senate amendment. That's why you are now getting the strange legislative lingo of considering a Senate Amendment to a House Amendment to a Senate Amendment. H.R. 4853 has become a proverbial ping pong ball being bounced and amended between the chambers.

This Rule did not sail smoothly through the Rules Committee. California's Republican Representative wanted to make all submitted amendments open to debate on the floor. That failed on Rules Committee Record Vote 516. Next up was Indiana's Republican Representative Mike Pence who wanted to MAKE PERMANENT the FAT CAT TAX BOONDOGGLE. The Pence Amendment was introduced by North Carolina's Republican Representative Dr. Foxx. That failed by on Rules Committee Record Vote 517. Here is your barometer forecasting Republican Tax Policy in the 112th Congress. Mr. President, make ready your veto pen!

The House Amendment, proffered by North Dakota's Democratic Representative Earl Pomeroy takes aim at the two-year extension of the 2009 estate tax law. The amendment strikes Title III of the Senate Amendment to H.R. 4853 and amends the bill to provide two years of estate tax relief at 2009 levels. In calendar years 2011 and 2012 the estate tax exemption amount would be $3.5 million ($7 million for a married couple) and the maximum tax rate on estates would be 45%.

The Amendment provides estates from decedents in 2010 with the option to elect treatment under the 2009 levels or under current law for tax purposes. This was the taxpayer can look at the provisions of the tax code which treats them most favorably and lets them make a choice. This election allows estates to receive a step up in basis on inherited property rather than the 2010 carryover basis rules. A step up in basis is preferred when minimizing tax liability.

The exemption level and rate are consistent with the estate tax proposal included in the President's FY2010 and FY2011 budgets. Under the Senate Amendment to H.R. 4853, the bill provides two years of estate tax relief with a $5 million estate tax exemption ($10 million for married couples) and a maximum rate of 35%. This Amendment saves $23 billion and affects a mere 6,600 estates in 2011. These 6,600 estates would receive an average additional tax cut of more than $1.5 million each under the Senate bill.

Report Number 111-682 containing the language of the House Amendment to the Senate Amendment to the House Amendment of H.R. 4853 can be found online at: http://www.rules.house.gov/111/RuleRpt/111_satohatosatohr4853_rpt.pdf.

DON'T ASK DON'T TELL IS BACK IN THE HOUSE

H.R. 2965 is the SBIR/STTR Reauthorization Act of 2009, while it began as legislation targeting small business investment in research and innovation it has become the vehicle for repealing the military's Don't Ask Don't Tell policy.

H.R. 2965 was introduced by Pennsylvania's Democratic Representative Jason Altmire on June 19, 2009. The bill was reported out of the House Committee on Small Business and the Committee on Science and Technology. A related bill in the Senate is S. 1233, introduced by Louisiana's Democratic Senator Mary Landrieu.

H.R. 2965 passed in the House on roll call vote 486 on July 8, 2009. The margin was 386 in favor to 41 against. On July 13, 2009 it passed the Senate in lieu of S. 1233 with an amendment. Action in the Senate was on July 13, 2009 by Unanimous Consent.

The Senate Amendment struck all the language in the bill following the Enactment Clause and substituted the language of S. 1233 as it had been amended. Senator Reid, the Democratic Majority Leader from Nevada introduced Senate Amendment 1502 for Oklahoma's Republican Senator Tom Coburn and Wisconsin's Democratic Senator Russ Feingold.

The Rules Committee is taking up H.R. 2905 today with an Amendment. This Amendment appears to be in the nature of a substitute. The new Short Title of the legislation is the ‘‘Don’t Ask, Don’t Tell 5 Repeal Act of 2010’’. To read the complete text of this amendment go to the Rules Committee website at: http://www.rules.house.gov/111/LegText/111_hrdadt.pdf.

The effective date of repealing Don't Ask Don't Tell under this amendment will be the latter date between 60 days after the Secretary of Defense has received the report on COMPREHENSIVE REVIEW ON THE IMPLEMENTATION OF A REPEAL OF 10 U.S.C. 654, as required under a prior section of the amendment. Note: that report is in and may be accessed online at http://www.defense.gov/home/features/2010/0610_gatesdadt/DADTReport-SPI_FINAL_20101130(secure-hires).pdf.

The President has issued a statement to the public consistent with the terms of this proposed law. You can read the President's remarks at: http://www.whitehouse.gov/the-press-office/2010/11/30/statement-president-obama-dod-report-don-t-ask-don-t-tell.

The second triggering event is a communication from the President to the Congressional Committees on Defense certifying that the President, the Secretary of Defense, and the Joint Chiefs of Staff have considered the recommendations of the report and that they can proceed in a manner consistent with the standards of military readiness, military effectiveness, unit cohesion, and the recruiting and retention of the Armed Forces.

This legislation does not confer any additional benefits such as recognizing marriage between same sex partners. No private causes of action are authorized by this amendment. That means no one gets a new right to sue anyone else.

The House previously passed similar legislation when it adopted House Amendment 672 to H.R. 5136, the National Defense Authorization Act for Fiscal Year 2011.  That measure passed the House on May 28, 2010, roll call vote 336, by a margin of 229 in favor and 186 opposed.  That bill is stalled in the Senate.  

ARIZONA 5B 1070: HOW THE PARTIES VIEWED THE ISSUES ON APPEAL & THE LINK TO WATCH THE ORAL ARGUMENTS

Another way to discuss the issues in the appeal of Arizona's SB 1070 law is to look at how the party's discuss the case. The case of the United States of America, Plaintiff/Appellee v. State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants-Appellants, case number CV 10-1413-PHX-SRB before the Ninth Circuit Court of Appeals.

Arizona frames the debate in terms of “rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,”

The United States sees the case as one where the Federal Government has exclusive authority to establish the Nation’s immigration policy and priorities, to avoid the creation of a patchwork of state immigration enforcement schemes, and to prevent undue burdens on lawfully present aliens.

In Arizona's view the “Support Our Law Enforcement and Safe Neighborhoods Act,” as amended or SB 1070 was passed to combat the harm that Arizona and its citizens are suffering as a result of illegal immigration. Arizona contends that the Department of Homeland Security (“DHS”) has demonstrated its inability (or unwillingness) to enforce the federal immigration laws effectively. The Act’s primary purpose, therefore, is to enhance the assistance Arizona and its law enforcement officers provide in enforcing federal immigration laws.

The United States' sees the purpose behind SB 1070 differently. In the view of the appellees Arizona has created a state immigration policy that makes “attrition through enforcement the public policy of all state and local government agencies in Arizona,” regardless of federal immigration policy or enforcement priorities.

Arizona claims that its Legislature carefully crafted the Act to ensure that Arizona’s officers would enforce SB 1070 in compliance with existing federal laws and pursuant to well established criminal and constitutional law and practice.

Arizona says that rather than welcoming what Arizona claims is much-needed assistance in enforcement of Federal Immigration Law, the United States sued the State of Arizona and its Governor twenty-three days before the Act’s effective date, raising a facial challenge to SB 1070 principally on preemption grounds.

The United States sees it differently. The suit brought by the United States challenged SB 1070 in order to guard the federal government’s foreign policy prerogatives, and to ensure cooperation with States in aid of the federal government’s immigration enforcement rather than diversion of the federal government’s resources from its prioritized immigration enforcement against suspected terrorists and criminal aliens.

Arizona challenges that the United States does not have exclusive authority over immigration and that the preemption claim flies in the face of express directives from Congress and well-established preemption law. Congress, Arizona claims, has repeatedly encouraged cooperation and assistance from state and local authorities in enforcing federal immigration laws. And it is Congress’ intent—not DHS’s— that controls whether S.B. 1070 is preempted.

The United States, essentially defending the trial court, said that the court explained that the Constitution vests exclusive authority in the national government to regulate immigration. Pursuant to that authority, Congress has established a comprehensive framework that governs entrance and admission into the United States by foreign nationals, the consequences of illegal entry, and the procedures for removal and deportation of aliens from this country.

Congress has also comprehensively regulated the employment of persons unlawfully present in the United States, and imposed a calibrated scale of civil and criminal penalties on employers who knowingly hire such persons, but declined to impose criminal penalties on such persons who seek or obtain employment.

Arizona is saying that the trial court erred in issuing its preliminary injunction. In doing so, the district court, according to Arizona, misapplied the law by:

(1) misconstruing well-established principles of federal preemption law;

(2) disregarding its obligation to preserve the constitutionality of the Act’s provisions and to presume that Arizona will implement the provisions in a constitutional manner; and

(3) ignoring the United States’ burden on a facial challenge to show that the provisions of SB. 1070 are unconstitutional in all of their applications.

Instead, the district court granted the United States’ request for the extraordinary remedy of injunctive relief by accepting the United States’ speculation regarding the potential burden that enforcing sections 2(B), 3, 5(C), and 6 might impose on narrow categories of lawfully-present aliens in hypothetical and speculative scenarios, and the possible impact to DHS’s achievement of its newly-established objectives.

The United States says the court enjoined a provision that makes it a crime in Arizona for a person to violate 8 U.S.C. §§ 1304(e), 1306(a), which require certain aliens to register with the federal government and carry with them federal registration documentation. SB. 1070, § 3, codified at Ariz. Rev. Stat. § 13-1509.

The court also enjoined a provision that makes it a crime in Arizona for a person who is unlawfully present in the United States to apply for or to perform work as an employee or independent contractor in Arizona. S.B. 1070, § 5, codified at Ariz. Rev. Stat. § 13-2928(C).

Another of the enjoined statutory provisions requires all state and local law enforcement officers in Arizona to determine, when practicable, the immigration status of any person whom they stop or detain whenever reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, and to verify the immigration status of any person who is arrested before the person is released. S.B. 1070, § 2, codified at Ariz. Rev. Stat. § 11-1051(B).

The fourth enjoined provision authorizes a state officer to arrest a person without any warrant if the officer has probable cause to believe that the person, including a person who is authorized to be in the United States and is lawfully present here, has committed at any previous time a public offense that would make the person removable from the United States. S.B. 1070, § 6, codified at Ariz. Rev. Stat. § 13-3883(A)(5).

Oral arguments in this case were heard by a three judge panel of the United States Court of Appeals sitting at San Francisco, California on November 1st. The judges were Judge Noonan, Judge Paez, and Judge Bea. To watch those oral arguments link to the Ninth Circuit's web site: http://www.ca9.uscourts.gov/media/?m_page_size=50&m_sort_field=&m_sort_field_by=&m_sort_type=&m__ff_cms_media_video_media_type_operator=%3D&m__ff_cms_media_video_media_type=Watch&m__ff_cms_media_case_name_operator=like&m__ff_cms_media_case_name=&m__ff_cms_media_case_num_operator=like&m__ff_cms_media_case_num=&m__ff_cms_media_case_panel_operator=like&m__ff_cms_media_case_panel=&m__ff_cms_media_hearing_loc_operator=like&m__ff_cms_media_hearing_loc=&m__ff_cms_media_hearing_date_mod_operator=like&m__ff_cms_media_hearing_date_mod=&m__ff_selSearchType=0&m__ff_onSUBMIT_FILTER=Search.

CHANGES ARE COMING TO THE KANSAS CRIMINAL CODE - WHEN FAILURE TO ACT TRIGGERS CRIMINAL LIABILITY AND REFINING THE CULPABLE MENTAL STATE STANDARDS

Changes are coming to the Kansas Criminal Code in 2011. A new provision makes a significant distinction in the definition of Actus Reus or criminal act definitions. This is the requirement of a voluntary act or omission. New §21-5202 closely parallels Model Penal Code §2.01, which says that a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

The language of §21-5202 came from last session's House Bill 2668 §12:

"New Sec. 12. (a) A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession.

(b) A person who omits to perform an act does not commit a crime unless a law provides that the omission is an offense or otherwise provides that such person has a duty to perform the act.

This opens criminal liability in Kansas to a class of laws called Failure to Act. In Texas a woman was found guilty of Capital Murder for failing to seek medical care quickly enough to save the life of her ailing child. Foster Mother Ruth Overton was found guilty by a jury trial and sentenced to life in prison. That case on appeal is Hannah Ruth Overton v. The State of Texas, 13-01-00735. The opinion of the Texas Court of Appeals for the 13th District in this case is found at http://www.13thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=18125. Her appeal was denied.

In this case a foster child died under Overton's care, apparently as the result of ingesting a spice mixture added to his drinking water there was also an injury to the child's head. The indictment charged Overton, inter alia with:

"... and/or intentionally or knowingly, by omission, failing to provide or to seek adequate and/or timely medical care or treatment to [A.B.] and the defendant had a statutory or legal duty to act or the defendant had assumed care, custody or control of [A.B.]; or by manner and means unknown to the Grand Jury," emphasis added.

Consider, by distinction, that Kansas' Good Samaritan law, K.S.A. § 65-2891, grants health care providers  responding to injured persons "at the scene of an emergency or accident" immunity from civil cases except for "damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care." It is important to note that K.S.A. §65-2891 neither imposes a duty to respond nor grants immunity from criminal prosecution.

Suppose the Good Samaritan law imposed a duty on the health care provider to stop at the scene of an accident or emergency and render aid or suffer criminal sanctions.  If the health care provider drove away and ignored that duty, even though traffic cameras showed that person up slowed and observed the emergency event, then there would be a Failure to Act triggering liability under §21-5202(a) and the statute imposing the duty in the first place. 

I expect the Failure to Act "omission" imposed by §21-5202 will be triggered by a duty specifically imposed by law or a relationship. Obviously where a statute says failure to act is criminal conduct then §21-5202 applies.  Where the law recognizes a duty by relationship then the section will apply.  We cn anticpate disputes when §21-5202 is activated by relationship and the statutes are not clear.

Another wrinkle will be if Kansas Courts infer the Mens Rea or culpable state of mind requirements from the Actus Reus. In the Overton case one of the contentious issues was whether the defendant acted with the requisite Mens Rea. The Mens Rea refers to the culpable state of mind requirement.  Did the defendant know and appreciate the risk of harm in the act they are accused of commiting? The new statutory changes in the Kansas Criminal Code will make such inferences more difficult.

In the Overton case the Texas Court of Appeals succinctly addressed the issue Overton raised about the culpable mental state requirement:

On appeal, Overton argues, without citation to authority, that "[b]ecause it was based upon an infirm indictment, the jury charge did not charge a felony offense." We disagree. The jury charge required the jury to determine whether Overton intentionally or knowingly caused the death of A.B., an individual under the age of six years. Thus, it correctly instructed the jury on the elements of capital murder. Overton also appears to make the same argument she made in her first issue--that the indictment did not include the requisite mens rea. We have already concluded that the indictment contains all of the elements of capital murder, and we now conclude that the jury charge correctly instructed the jury to find Overton guilty only if she intentionally or knowingly caused A.B.'s death. (emphasis added).

Attorneys practicing Criminal Defense have as their threshold standard the necessity of making the state prove each and every element of a charged offense. These attorneys will want to hone their skills when it comes to requiring the state to prove the Mens Rea element.

In the Overton case the disconnect between inferring the Mens Rea from the Actus Reus reared its head after the trial. World Magazine, a Christian publication, printed an article by Clint Rainey, "Unknown Ingredient" in its February 23, 2008 edition. In that article Rainey wrote:

"Jurors said they didn't think Hannah Overton meant to kill Andrew. They found her guilty of his death by 'failure to act.' But the prosecution didn't include any lesser charges, and since Andrew was under 6, state law applied to this case required she get life without parole or nothing. Jurors felt hamstrung. By law, capital murder must be purposeful. Jurors thought Hannah was guilty of not taking Andrew to the hospital quickly enough; defense attorneys said this wasn't purposeful. They asked the judge to throw out the verdict, arguing if jurors rejected that Hannah intended to kill Andrew purposefully by force-feeding him, then it made no sense to say that her failure to act later on was intentional." (Emphasis added).

If a juror doesn't think or believe that a defendant meant to commit the crime then how has the state proved the Mens Rea element of the offense? Under Kansas' new §21-5202 the Defense Bar needs to pay keen attention making the state prove the defendant's acts, omissions or possessions were voluntary.

Under §2.01 of the Model Penal Code the requirement of voluntary acts, omission as the basis of liability and possession as an act are discussed. K.S.A. §21-5202 predicates the omission, triggering criminal liability, on voluntary conduct.



The Model Penal Code  provides non-voluntary  illustrations  such as (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Liability for the commission of an offense may not be based on an omission unaccompanied by action unless either (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law.

As for possession the Model Code says "possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession "

K.S.A. §21-5202 replaces K.S.A. §21-3201. The new section reads

New Sec. 13. (a) Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed ‘‘intentionally,’’ ‘‘knowingly’’ or ‘‘recklessly.’’

(b) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows: (1) Intentionally; (2) knowingly; (3) recklessly.

(c) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.

(d) If the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(e) If the definition of a crime does not prescribe a culpable mental state, but one is nevertheless required under subsection (d), ‘‘intent,’’ ‘‘knowledge’’ or ‘‘recklessness’’ suffices to establish criminal responsibility.

(f) If the definition of a crime prescribes a culpable mental state that is sufficient for the commission of a crime, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the crime, unless a contrary purpose plainly appears.

(g) If the definition of a crime prescribes a culpable mental state with regard to a particular element or elements of that crime, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the crime unless otherwise provided.

(h) A person acts ‘‘intentionally’’, or ‘‘with intent,’’ with respect to the nature of such person’s conduct or to a result of such person’s conduct when it is such person’s conscious objective or desire to engage in the conduct or cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘‘intentionally’’ or ‘‘with intent’’ are specific intent crimes. A crime may provide that any other culpability requirement is a specific intent.

(i) A person acts ‘‘knowingly’’, or ‘‘with knowledge,’’ with respect to the nature of such person’s conduct or to circumstances surrounding such person’s conduct when such person is aware of the nature of such person’s conduct or that the circumstances exist. A person acts ‘‘knowingly,’’ or ‘‘with knowledge,’’ with respect to a result of such person’s conduct when such person is aware that such person’s conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘‘knowingly,’’ ‘‘known,’’ or ‘‘with knowledge’’ are general intent crimes.

(j) A person acts ‘‘recklessly’’ or is ‘‘reckless’’, when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

The changes shed greater light assisting Bench and Bar in making more precise determinations of Mens Rea. The section being replaced 21-3201 is much briefer, it reads:

"21-3201. Criminal intent. (a) Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.

(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms "knowing," "willful," "purposeful," and "on purpose" are included within the term "intentional."

(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness" as used in this code."

Proving Mens Rea will not be necessary in every circumstance.  The language under the new §21-5203, which came from §14 of the statute as passed. It reads:

New Sec. 14. A person may be guilty of a crime without having a culpable mental state if the crime is:

(a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described;

(b) a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described (for instance, statutory rape);

(c) a violation of K.S.A. 8-1567 or 8-1567a, and amendments thereto (Driving under the influence of alcohol or drugs);

or

(d) a violation of K.S.A. 22-4901 et seq., and amendments thereto (registration of sexual offenders).

The new Kansas §21-5203 replaces the old K.S.A. §21-3204 which read:

21-3204. Guilt without criminal intent, when. A person may be guilty of an offense without having criminal intent if the crime is: (1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described; or (2) a violation of K.S.A. 8-1567 or 8-1567a and amendments thereto.

These are good changes to the law and will, I think, result in convictions and acquittals based on accurate standards in the law rather than the inferences upon the culpable state of mind.

The language in K.S.A. 21-5202 (j) guides away from the frustrated jury result in the Overton case. Failing to seek prompt medical attention for a sick or injured child, the omission, sounds under a Mens Rea standard of recklessness not  intentional or knowing. 

Remember that new changes in Kansas law say a person acts recklessly when they consciously disregard  a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Had the Texas Court instructed the jury with a lesser included offense, one with a reckless Mens Rea standard, then Overton may have been found guilty of that lesser offense. 

Hopefully no Kansas jury will find itself hamstrung between conviction and acquittal as may have been the case in the Hannah Overton v. State of Texas.

Anthony Weiner has a good day in Congress & Every Republican voted AGAINST funding the Military and Food Safety

H.R. 5987, the Seniors Protection Act of 2010, failed to get a ⅔ majority vote on roll call 611. The supermajority was required because the bill was brought up under a suspension of the rules. A similar bill was defeated in the Senate, S. 3985, when the upper chamber failed to invoke cloture on Record Vote 267.

These measures were designed to provide a modest measure of relief to senior citizens receiving Social Security. There will be no cost of living [COLA] although expenses for seniors continue to rise. H.R. 5987, introduced by North Dakota Democratic Representative Earl Pomeroy, and S. 3985, introduced by Vermont's Independent Senator Bernie Sanders, provide for a onetime payment of $250.00 to seniors.

The vote margin for H.R. 5987 was 254 in favor and 153 against with 27 Members not voting. Twenty-six Republicans voted for this bill while twelve Democrats voted against passage. Had the Democrats held together this bill would have easily passed, 272 votes were needed to satisfy the supermajority requirement.

We may see H.R. 5987 again but I wonder why the Majority's Leadership didn't wait until later in the day to present the measure. The House took up H. Res. 1752 which waives the ⅔ majority requisite; a requirement of clause 6(a) of rule XIII with respect to consideration of certain resolutions reported from the Committee on Rules, and providing for consideration of motions to suspend the rules.

H. Res 1752 passed on roll call 615 by a margin of 215 to 194 with 24 Members not voting. Twenty-seven Democrats opposed this rules change. It will be interesting to see which resolutions are forthcoming under the provisions of H. Res. 1752.

H.R. 6495, the Robert C. Byrd Mine Safety Protection Act of 2010, still required the ⅔ supermajority on roll call 616. It didn't get it. This measure failed by a vote of 214 to 193 with 26 Members not voting. Twenty-seven Democrats voted against the bill which needed 272 votes to satisfy the supermajority requirement.

H.R. 6495 would require operators of underground coal mines, underground metal mines, or other underground mines containing specified concentrations of flammable gasses to improve employee safety measures and comply with new standards regarding employee rights. The CBO reported that the budgetary effect of H.R. 6495 would be a reduction in the deficit of $115 million from fiscal year 2011 through 2020.

New York's fiery Democratic Representative Anthony Weiner's H.R. 4501, the Guarantee of a Legitimate Deal Act, passed the House on roll call vote 620. This bill also required a ⅔ supermajority, and it got it. The margin of victory was 324 in favor to 81 against with 28 Members not voting, 270 was needed for passage. No Democrats voted against H.R. 4501 while 85 Republicans voted for the bill.

I am astonished that Weiner didn't call this the "Glenn Beck Deceptive Gold Advertising Act." Glenn Beck has notoriously served as the huckster in chief for one of the worst gold rip off businesses. This bill defines an "online purchaser of precious metals" as a person who is in the business of purchasing jewelry or other precious metals directly from consumers and maintains a website through which such person solicits such transactions.

The legislation, if passed in the Senate, will make it unlawful for any online purchaser of precious metals to: (1) refine or otherwise permanently destroy an item of jewelry or precious metal before receiving an affirmative acceptance of such purchaser's offer from the consumer to whom the offer was made; (2) fail to promptly return to the consumer any jewelry or other precious metal if the consumer declines the purchase offer; or (3) fail to insure any shipment in an amount equal to either 60% of the melt value or the amount the consumer insured the shipment for.

Violations under this bill will be treated as unfair and deceptive acts or practices under the Federal Trade Commission Act. The Federal Trade Commission [FTC] will be required to enforce this Act as though all applicable terms and provisions of that Act were incorporated into and made a part of this Act.

Each and every House Republican voting in roll call 622 said no to America's troops. H.R. 3082, the Full-Year Continuing Appropriations Act, 2011, was back before the House after passing the Senate with an Amendment. This bill funds America's military. This bill is also the vehicle for passing the Food Safety legislation. The FDA Food Safety Modernization Act, S. 510, is incorporated as Division "D" of H.R. 3082.

H.R. 5281, the Removal Clarification Act of 2010, was back from the Senate with Amendments. This bill clarifies the judicial code about when and how to remove cases from state court to federal court when suit is filed against the United States, a federal agency or officer, or specified others; or a criminal prosecution is commenced in a state court against any of them.

This bill passed the Senate by unanimous consent. It is not controversial, it's just housekeeping. That didn't stop the House from being deeply divided. The bill passed on roll call 625 with 216 in favor and 198 against.